Wright v. District Court In and For Jefferson County

• Decision Date: 18 April 1983
• Docket Number: No. 82SA371,82SA371
• Citation: 661 P.2d 1167
• Parties: Lloyd WRIGHT, Petitioner, v. The DISTRICT COURT In and For the COUNTY OF JEFFERSON, State of Colorado, and the Honorable Joseph P. Lewis, one of the Judges thereof, Respondents.
• Court: Colorado Supreme Court

Page 1167

661 P.2d 1167

Lloyd WRIGHT, Petitioner, v. The DISTRICT COURT In and For the COUNTY OF JEFFERSON, State of Colorado, and the Honorable Joseph P. Lewis one of the Judges thereof, Respondents.

No. 82SA371.

Supreme Court of Colorado En Banc.

April 18, 1983.

DeMoulin, Anderson, Campbell and Laugesen, P.C., Laird Campbell, J. Fern Black, Denver, for petitioner.

George J. Nichols III, William L. Carpenter, Lakewood, for respondents.

DUBOFSKY, Justice.

In this original proceeding, we issued a rule to show cause why the respondent district court's order denying petitioner Lloyd Wright's motion to dismiss a medical malpractice action against him should not be vacated and the case dismissed. We now discharge the rule.

The Adolph Coors Company (Coors) employs the petitioner, a licensed medical doctor, to render medical services to its employees on a full-time basis. In October, 1980, Dr. Wright treated Coors employee Troy Cobb for back injuries suffered in an on-the-job accident. Cobb missed almost a month of work recovering from the accident. Coors and Cobb settled Cobb's resultant claim for worker's compensation. Several days after he returned to the job, Cobb reinjured his back. Cobb then brought a malpractice action against Dr. Wright, alleging that Wright misdiagnosed his injury and advised him to return to work before he had fully recovered. Dr. Wright moved to dismiss the action on the ground that the Colorado Workmen's Compensation Act, section 8-40-101, et seq., C.R.S.1973 and 1982 Supp., provides the exclusive remedy for a workplace injury and immunizes Dr. Wright from Cobb's malpractice action because of Wright's status as a co-employee. Relying on California Supreme Court cases, the Jefferson County District Court denied the motion, finding that Dr. Wright occupied the dual capacity of co-employee and physician and that Wright remained liable to Cobb for any negligence committed within the scope of the doctor-patient relationship.

Dr. Wright brought this original proceeding alleging that the district court exceeded its jurisdiction in refusing to dismiss the suit on the basis of co-employee immunity. We hold that the district court properly concluded that Dr. Wright's status as an employee of Coors does not operate as a total bar to malpractice actions by co-employees such as Cobb. Dr. Wright's relationship with Cobb was identical to that of a doctor in private practice with a patient. This relationship is distinct from the employment relationship; it entails different rights and duties. Clearly, a private doctor would be liable to Cobb for malpractice. There is no logical reason to treat company physicians differently. Thus, the rule which immunizes employees from suits by their co-employees for negligence within the course of employment is inapplicable here.

California has long recognized that a company doctor such as Dr. Wright may operate in the dual capacity of co-employee and physician and is not shielded from malpractice actions by reason of that status. D'Angona v. County of Los Angeles, 27 Cal.3d 661, 166 Cal.Rptr. 177, 613 P.2d 238 (1980); Hoffman v. Rogers, 22 Cal.App.3d 655, 99 Cal.Rptr. 455 (1972); Duprey v. Shane, 39 Cal.2d 781, 249 P.2d 8 (1952). ¹ Several jurisdictions in addition to California have adopted the dual capacity approach. Vesel v. Jardine Mining Co., 110 Mont. 82, 100 P.2d 75 (1939); Robbins v. Seekamp, 444 A.2d 537 (N.H.1982); Guy v. Arthur Thomas Co., 55 Ohio St.2d 183, 378 N.E.2d 488 (1978); Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 439 A.2d 1162 (1982). But see McCormick v. Caterpillar Tractor Co., 85 Ill.2d 352, 53 Ill.Dec. 207, 423 N.E.2d 876 (1981); Trotter v. Litton Systems, Inc., 370 So.2d 244 (Miss.1979); and Garcia v. Iserson, 33 N.Y.2d 421, 353 N.Y.S.2d 955, 309 N.E.2d 420 (1974). But see also Jenkins v. Sabourin, 104 Wis.2d 309, 311 N.W.2d 600 (1981) (refusing to adopt dual capacity approach in action against company nurse but acknowledging that company physician remains amenable to suit in tort outside Wisconsin's worker's compensation act). Georgia, Indiana, and Texas have followed the dual capacity rationale in permitting medical malpractice claims against company doctors on an independent contractor theory. Gay v. Greene, 91 Ga.App. 78, 84 S.E.2d 847 (1954); McDaniel v. Sage, 419 N.E.2d 1322 (Ind.App.1981); McKelvy v. Barber, 381 S.W.2d 59 (Tex.1964). ²

Both McCormick v. Caterpillar Tractor Co. and Jenkins v. Sabourin turn on statutory interpretation which we find unconvincing. Like Colorado, Illinois and Wisconsin have worker's compensation acts which require an employer to furnish such medical care as is necessary to relieve the effects of a workplace injury. See section 8-49-101, C.R.S.1973 and 1982 Supp.; Ill.Ann.Stat. ch. 48, p 138.8(a) (Smith-Hurd 1977) (1981 Supp.); Wis.Stat.Ann. § 102.42(1) (West 1979) (1982 Supp.). The Supreme Courts of Illinois and Wisconsin interpret those provisions as obligating an employer to provide medical services as an incident of employment and, therefore, conclude that the worker's compensation act is the sole remedy for malpractice by company health providers. McCormick v. Caterpillar, 53 Ill.Dec. at 209, 423 N.E.2d at 878; Jenkins v. Sabourin, 311 N.W.2d at 604-5. In both cases, the reasoning of the dissent is more persuasive. Colorado's Workmen's Compensation Act does not require Coors or any other employer to maintain and operate a clinic. When an employer voluntarily undertakes to directly render medical treatment to its injured employees, it assumes a function which is not required by the Act and, what is most significant, which is not an integral part of its business. By moving from paying for medical services to rendering them directly, an employer generates obligations which are unrelated to the employment relationship, McCormick v. Caterpillar, 53 Ill.Dec. at 211-12, 423 N.E.2d at 880-881 (Simon, J., dissenting); Jenkins v. Sabourin, 311 N.W.2d at 613 (Abrahamson, J., dissenting), and which create a new doctor-patient relationship. The metamorphosis in relationships is critical, for while "[i]t is virtually impossible to cause physical injury by writing a check[,] [i]t is very possible to cause physical injury by administering medical treatment to a patient...." Larson, Workmen's Compensation Insurer as Suable Third Party, 6 Duke L.J. 1117, 1137 (1969). But see 2A Larson, Workmen's Compensation Law, § 72.60, et seq. (1982).

Although Michigan and New York decline to apply the dual capacity approach in the context of company-run clinics, both states have followed the doctrine where medical services are rendered to a public employee at a hospital which also treats the general public. Fletcher v. Harafajee, 100 Mich.App. 440, 299 N.W.2d 53 (1980); Volk v. City of New York, 284 N.Y. 279, 30 N.E.2d 596 (1940); Stevens v. County of Nassau, 56 A.D.2d 866, 392 N.Y.S.2d 332 (N.Y.App.Div.1977); compare Garcia v. Iserson, supra. The distinction drawn is that the employee who is treated in a hospital is receiving the same services available to the public, while the employee who is seen in a company clinic is treated as an incident of employment. Under this reasoning, the former is allowed a cause of action for malpractice but the latter is barred by co-employee immunity. We are not persuaded by this distinction. It is not the public practice of medicine which creates a dual capacity for the attending physician; it is the very practice of medicine, with its special duties and responsibilities, which charges a doctor with all of the obligations which normally arise in the doctor-patient relationship. One's need for protection from medical malpractice is not affected by the configuration of the employment relationship or the location of treatment.

A rule exposing a physician to liability for malpractice committed while acting as a company doctor is not inconsistent with either the policies underlying the Workmen's Compensation Act or its general rule of co-employee immunity. The worker's compensation scheme is based upon a mutual compromise of common law rights by employers and workers: when an industrial accident occurs, the employer accepts liability without proof of fault and the worker surrenders potential causes of action in tort for a more limited schedule of benefits. While most workplace accidents have certain characteristics which justify tort immunity for employers and co-employees, these characteristics are not present when the tortfeasor is a company doctor. Five salient distinctions are discussed at length in Jenkins, The No-Duty Rule in New York: Should Company Doctors Be Considered Co-employees?, 9 Hofstra L.R. 665, 675-680 (1981), and support the adoption of the dual capacity approach.

First, the worker's compensation scheme is based on the fact that most workplace accidents occur without fault or in a manner making assignment of fault nearly impossible. This assumption is not relevant to injuries resulting from medical malpractice, which occurs away from the production area, is easier to identify, and can be judged in light of ascertainable medical standards.

Second, co-employee immunity embodies a recognition that workplace accidents are less a result of unreasonable conduct than a concomitant of a highly technological age. Unlike the occupational accidents which are an inevitable consequence of working with complex equipment, medical malpractice is neither inevitable nor a risk that is inherent in the production process.

Third, worker's compensation is based in part on the premise that the employer is in a better position than a co-employee to shoulder the risk of an industrial accident. But the higher income and professional liability insurance coverage of company physicians set them apart from the average co-employee.

Fourth, a company physician does not participate in the mutual compromise of rights which is the essence of the worker's compensation scheme....